Infertility and Divorce

ust as every relationship is unique, so too is its ending.

Despite this, there are certain issues that come up time and again for separating spouses. Many of these are obvious – conflicts over money, infidelity, and work are the most well-known – but others are less so.

One challenge that is all too common but rarely discussed is infertility which, even if overcome, can lead to separation or divorce.

Infertility can strain a relationship in a variety of ways:

  1. Emotional. Individuals wanting to have children often suffer a profound sense of loss upon learning that they cannot do so naturally. Not only can infertility upset dearly-held plans, some experience it as defeating a fundamental drive to reproduce and parent.
  2. Physical. Aside from the potential mental health outcomes of infertility (such as depression), fertility treatments can carry with them serious and long-lasting physical side effects.
  3. Financial.  The cost of fertility treatments varies widely, ranging from a few thousand dollars for the least intrusive treatment to many tens of thousands for successive rounds of in-vitro fertilization (IVF). Provincial health insurance and most private insurers do not cover these costs. Other than the purchase of a home, fertility treatments may be the largest expense incurred by a couple. The resulting debt, especially if the treatments are not successful, places a tremendous burden on couples.
  4. Relational. Infertility and its treatment can also have a negative impact on relationship dynamics. One spouse may blame the other for the inability to reproduce; or a spouse may blame him or herself, feeling that they have let their partner down.

Many couples withstand these pressures and go on to have children with fertility treatments or through adoption. Indeed for many couples (including many same-sex couples), assisted reproduction or adoption are the starting point to becoming parents. Other couples decide not to have children and choose to pursue other goals and interests.

Whatever the outcome, however, the experience of infertility can have lasting and deleterious effects on spouses and any children they do have, leading to a painful and difficult separation.

The Case of K.D. v. N.D.

A vivid illustration is found in K.D. v. N.D., where domestic disagreement about childbearing spilled over into a bitter custody dispute.

In this case, the parties pursued fertility treatments for two years after being unable to have children naturally. They later learned that the wife’s eggs were not viable, which “devastated” the parties. They eventually underwent assisted reproduction using donated eggs, a process that was not only expensive but difficult and painful for the wife. The donor egg process proved successful and led to the birth of a daughter.

The parties were initially delighted at the birth of their child; however, the father later fell into a deep depression leaving him unable to work for some time. The parties’ relationship deteriorated. The wife wished to have another child. The husband was reluctant as he was depressed, not working, and felt they needed to deal with their marital issues before having another child. This sparked significant fighting, although ultimately the husband relented and the assisted reproduction process was started anew, leading to the birth of a second child.

The parties continued to argue and the relationship remained troubled. A flashpoint of conflict was the genetic relationship of the parties to their children: the husband referred to himself as the “genetic father”, which the wife considered denigrating as she had no genetic relationship to the child. The mother asserted at trial that the father did not consider her to be the children’s real mother and that he alienated them from her by making constant negative remarks about her, claims the father denied.

Some of the conflict was driven by the mother’s vulnerability regarding her motherhood. She interpreted comments as being a threat on her parenthood when they were not intended to be so. The father, on the other hand, used the mother’s lack of genetic connection to the children out of anger, to hurt the mother and also “in a perhaps misguided effort to protect his legal status with his children”.

The court found that, fundamentally, both parties were good, caring parents. The mother was extremely conscientious, well-organized and wanted to control all aspects of her children’s upbringing. The father was more easygoing. They simply had different parenting styles.


The practice of family law requires a keen understanding of those cracks in a relationship which can drive couples apart. Not only does such understanding promote compassion, it also helps family lawyers identify complicated relationship issues and ensure that these do not obstruct a reasonable settlement or add additional fire to an already litigious separation.

About Alex Boland

Partner – Kelowna

Every life contains great transitions. I hope to help my clients through their separation with compassion, integrity, intelligence and dignity. I try and see each file on its own merits, and this means that I want to work with my clients to develop an approach that moves them forward towards their particular goals. Practically speaking, I prefer to take a collaborative approach to files where possible; I like to apply the specialized knowledge and competencies I've developed over my practice to challenging problems; and I like to exercise compassion in all that I do.